Wisconsin Revives Old Adultery Law

ASHLAND, WIS. — The hurt and bitterness that stalks many ex-spouses after divorce has erupted here into a startling criminal case.

``You never hear of this happening,`` said Katie Colgrove, a clerk in the Ashland County Circuit Court. ``If you did, half the county might be facing charges.``

Donna Carroll, 28, faces arraignment May 15 on criminal charges that she violated a dusty Wisconsin adultery law enacted 141 years ago. She is believed the first person to be charged under the law since before World War II. She faces a maximum penalty of two years in prison and a $10,000 fine.

The case has drawn international attention and the involvement of the American Civil Liberties Union. It raises several constitutional questions as well as concerns that if Carroll, who is divorced, is convicted, adultery laws may be used as vindictive weapons in other divorces and in child custody cases.

Wisconsin is not alone. There are similar laws still on the books in about half a dozen other states including Illinois, where adultery is a misdemeanor punishable by up to a year in jail and a $1,000 fine. And New Hampshire still has a 1791 adultery law that prescribes 39 lashes, standing on a gallows for an hour with a noose around the neck or jail for a year.

But such laws almost never are enforced because-if some pre-AIDS era sex surveys are to be believed-from 30 to 70 percent of married men and women conceivably could be charged with violations.

``If they`re having trouble finding jail beds for all the drug dealers and night stalkers out there, what are they going to do with the adulterers?`` said Joseph DuCanto, a Chicago family law practitioner.

In Ashland, a Lake Superior paper mill and tourist town of 9,040, most residents are unaware of the case because it has not been publicized locally. But it has sent ripples of annoyance and amusement through the county`s legal community.

``It should never have been brought in the first place,`` said Mark Perrine, Ashland County`s public defender. ``It`s an absurdly archaic law.``

The case grew out of a complaint last summer by Robert Carroll, 40, a truck driver whose nine-year marriage to Donna Carroll ended in February 1989, when she moved out.

Robert Carroll testified at a preliminary hearing last summer that his wife moved in with Sherman Stenner, an unemployed truck driver, while he was away on a trucking trip. Robert Carroll had met Stenner some time before at a truck stop in Madison, where he bought him a meal and offered to help him find work.

``Truck drivers stick together and they try to help each other when a man is out of work,`` Carroll testified. Stenner apparently came to know Donna Carroll when he phoned for an absent Robert at the couple`s house, said Joseph Carroll, Robert`s father.

Robert Carroll and his father went to District Atty. Robert Eaton last July with the adultery complaint. Their evidence: the elder Carroll said he had heard his daughter-in-law admit to adultery during a custody hearing for the couple`s 7-year-old son.

Eaton, a first-term prosecutor with a reputation for zealousness, said that he could not ignore the law in the face of a complaint with compelling evidence.

``I don`t think I have the power to decide that statute null and void,``

he said. ``It`s up to the state legislature to do that.``

Such laws are difficult to remove. New York Assemblyman Robert Passannante, a Manhattan Democrat, has been trying unsuccessfully for 15 years to pass a bill removing that state`s adultery law from the books. And in Wisconsin, Assemblyman Scott Fergus has been unable to get a bill introduced because of lack of co-sponsors.

``Legislators fear that it is politically suicidal to eliminate these laws,`` said Hendrik Hartog, a legal historian at the University of Wisconsin/ Madison.

``They rationalize those fears with the fantasy that they make no difference, that they are merely symbolic laws.``

Neither Robert Carroll, who admitted to adultery himself, or Stenner have been prosecuted under the law. Carroll`s adultery was committed in another state and isn`t subject to Wisconsin law.

The only evidence against Stenner, Eaton has decided, is hearsay-Robert and Joseph Carrolls` accounts of what they say they heard Donna Carroll say.

Meanwhile, Donna Carroll`s attorney, Jay Moynihan, contends that the charges against his client violate her rights to privacy, equal protection under the law and due process. Wisconsin has no law against sexual activity between unmarried consenting adults, he argues, and in 1977 adultery was removed as grounds for divorce.

``I don`t think there is any other crime that is based on marital status,`` he said.

Eaton argues that the state traditionally has exercised power to limit the right of intimate association in private-and without violation of the Constitution.

He cites laws against incest, bestiality, prostitution, homosexual activity and sexual activity before the age of consent.

The state has an interest in the preservation of marriage through upholding the adultery law, Eaton argues. Adultery can destroy marriages, which the state is then called upon to dissolve and often to support one spouse or the children, he wrote.

But Eunice Zoghlin Edgar, director of the ACLU`s Wisconsin chapter, makes the point that the state cannot have as an interest preservation of the Carrolls` marriage, since it is well beyond the point of retrieval.

Edgar jokes that if adultery were made a federal crime punishable by fine, the national debt would be wiped out in a year or two. But the humor is only a momentary lapse.

``I think it degrades the law, and it degrades the person being charged,`` she said of Eaton`s prosecution of Carroll. ``We don`t need an adultery strike force in this state. We have more serious matters to pursue.``